Paging All Democrats

In questioning before the Senate on Tuesday, Alberto Gonzales admitted that the President personally blocked an investigation by the Justice Department's Office of Professional Responsibility (OPR) into the NSA's (illegal) warrantless surveillance program. He did so by refusing to grant OPR's investigators the necessary security clearance. According to the President's spokesman, Tony Snow, this decision was made "for reasons of national security."

But, as Murray Waas reports, this decision seems more than a little arbitrary:

H. Marshall Jarrett, OPR's lead counsel, wrote Deputy
Attorney General Paul McNulty, on April 21, 2006, to point
out that while OPR was denied security clearances to
conduct its inquiry, requests from prosecutors and FBI
agents tasked with investigating who first leaked details of
the NSA surveillance program to the New York Times
were "promptly granted."

"We note...," Jarrett wrote, "that the Criminal Division's
request for the same security clearances from a large team
of attorneys and FBI agents were promptly granted, and that
their investigation of certain news leaks about the NSA
program is moving forward."

Jarrett also noted that while he and his attorneys were denied
the clearances, five "private individuals" who serve on the
president's "Privacy and Civil Liberties Oversight Board have
been briefed on the NSA program and have been granted
authorization to receive the clearances in question." Private
citizens -- especially those who serve only part-time on
governmental panels -- have traditionally been considered
higher security risks than full-time government employees,
who can lose their jobs or even be prosecuted for
leaking to the press.

And as Jack Balkin points out, private citizens who work for the various telecom companies were also, presumably, granted the necessary clearance.

So is there any precedent for this sort of denial? Not according to the former head of the OPR:

Michael Shaheen, who headed the OPR from its inception
until 1997, said in a telephone interview in May that his
staff "never, ever was denied a clearance" and that OPR had
conducted numerous investigations involving the activities of
attorneys general. "No attorney general has ever said no to
me," Shaheen said.

In other words, this denial was not only arbitrary, but unprecedented. President Bush personally killed an investigation into the activities of his own Justice Department.

But why did he do it? After all, the DOJ's legal arguments had already been aired publicly in a lengthy white paper. What could such an investigation have exposed? Well, as Glenn Greenwald explains:

[T]he critical point is not merely that the President broke the
law, but that he knew he was acting illegally, as evidenced by
the White House's repeated and ongoing attempts to block
any judicial review of the President's behavior and, now, the
President's personal efforts to block even DoJ investigations
of the propriety of his conduct.

I suspect than an OPR investigation would have uncovered the fact that many attorneys within the DOJ had counseled the White House that the legal arguments they were relying on were dubious at best and highly unlikely to survive judicial scrutiny (as evidenced by Hamdan). I'm sure that many of the lawyers at the DOJ agree in principle with the Addington/Yoo theory of executive power, but there's an enormous difference between finding an argument persuasive and believing that it is likely to carry the day in court. To take the most obvious example, many attorneys believe strongly that Roe v. Wade was wrongly decided. But there is no doubt that Roe is currently the law of the land.

Similarly, even before Hamdan, there was little doubt that under current Supreme Court precedent, neither the AUMF nor article II would likely be found to authorize the circumvention of FISA's clear prohibition against warrantless wiretapping. Whatever else the lawyers at the Justice Department told the President, they must have told him how unlikely these arguments were to prevail in court should the program ever be challenged. And that warning severely undermines the President's ultimate defense, i.e., that he was acting upon a good faith belief in the legality of his actions. This is why the OPR investigation had to be halted. Not because it threatened national security, but because it threatened the President, both politically and legally.

Imagine for a moment that Bill Clinton had pulled something like this. The Republicans would have gone absolutely batshit crazy. Every single conservative pundit and politician would have jumped all over this, and the shrieking would have been deafening. In the 1990s, any accusation of wrongdoing against the Clinton White House, no matter how trivial and unsubstantiated, was greeted with instant and unrelenting calls for investigation. Numerous independent counsels were appointed by Janet Reno to investigate all sorts of things, at enormous expense to the taxpayer. And still Republicans were not satisfied. They routinely called for Reno's resignation and accused her of conspiring with the White House to cover up damaging facts. And it wasn't just the Republicans. As Atrios points out:

If you took a few moments to go read through newspaper
editorials from the USA circa 1993-2000, you'd discover that
what editorial boards thought was the most important thing to
maintain for a functioning constitutional government was
having an attorney general who was independent from the
president. This stick was used to beat Janet Reno with regularly
to encourage her to launch yet another investigation into even
more crap which amounted to nothing. Now it's pretty much
accepted that Alberto Gonzales is Bush's personal attorney, and
that the JD isn't going to bother looking at White House activities.

What's remarkable to me is that the Democrats have not yet made any coordinated effort to make an issue out of this damaging revelation. I realize that a number of Democrats have fallen for the Rovian spin on the NSA issue and are therefore scared to bring it up, but surely even this timid group can see that there is no political downside to highlighting the President's personal effort to kill an investigation by his own Justice Department. After all, the OPR isn't the New York Times. It's would be damn near impossible, even for Rove, to portray this obscure group of DOJ lawyers as liberal terrorist sympathizers.

So repeat after me: "If what the President is doing is legal and proper, why is he so afraid to allow his own Justice Department to investigate? What does he have to hide?"

Now, was that so hard? Seriously, if the Democrats can't turn this to their political advantage, then they are truly hopeless.